Court rulings produce First Amendment fireworks

The pops, bangs and bright explosions of Independence Day celebrations fade quickly, but not the figurative fireworks over how we apply — and at times balance against each other — our core freedoms of religion and free expression in matters of everyday life.

Gene Policinski

Posted on July 4, 2014 at 1:23 p.m.

We’ve celebrated the nation’s 238th birthday on this July 4th holiday weekend with fireworks of all kinds and colors, but there are some ongoing pyrotechnics around First Amendment issues from religious liberty to free speech.

On June 30, the last day of its current term, the U.S. Supreme Court voted 5-4 vote in Burwell v. Hobby Lobby, Inc. that “closely-held” corporations do have certain religious freedom rights, and as such can refuse to provide women with no-cost access to some contraceptives as part of company health care obligation under the Affordable Care Act (ACA).

The decision set off verbal explosions on all sides of the issue. At the heart of the court’s decision is the Religious Freedom Restoration Act (RFRA), a federal law that says government rules and laws cannot create a “substantial burden” on a person’s ability to practice his or her religious faith unless the rule or law is needed to further a significant public interest. Even then, the rule or law must achieve its public benefit in the least restrictive way possible.

In the decision, Justice Samuel Alito said Hobby Lobby and another company involved in the dispute were “each owned and controlled by members of a single family” and the families’ “sincere religious beliefs have never been challenged.”

Alito cited an existing ACA exemption for religious non-profits, where the government pays for such contraceptive coverage. Alito said that there are a relatively small number of owners and companies similar to Hobby Lobby’s situation, so the added costs will not be a serious burden on the government.

In a dissent, Justice Ruth Ginsburg warned of a flood of such objections — noting that Jehovah’s Witnesses object on religious grounds to blood transfusions and that some Muslims, Jews and Hindus object to medicines and other health products produced from pigs.

The legal concept of “corporations as people” — upheld in the Hobby Lobby ruling — could well produce another kind of First Amendment “big bang” later this month. The Court’s 2010 decision in Citizens United v. Federal Election Commission eliminated limits on independent corporate spending in support of candidates running for federal office.

Opposition to the court decision has produced a proposed constitutional amendment to reestablish congressional authority to set “reasonable limits on the raising and spending of money by candidates and others,” and to allow Congress and states to ban campaign spending by “corporations or other artificial entities.”

If enacted, it would be the first such “amendment” of the First Amendment since the Bill of Rights was ratified in 1791. Senate majority leader Harry Reid, D-Nev., has said the proposal will be considered later this month by the Senate Judiciary Committee, following passage June 18 in a Senate subcommittee.

Fiery confrontations of a more personal and emotional kind were forecast by “pro-choice” advocates in the wake of another free speech case, McCullen v. Coakley, in which the Court in June struck down a Massachusetts law establishing a buffer zone extending 35 feet from the doorway of any facility where abortions were performed — including public areas like sidewalks. Anti-abortion advocates had complained to the courts that at such a distance they could not effectively speak to women headed to the clinics, to counsel them on alternatives to an abortion.

While state officials and others warned of intimidating tactics or the potential for violence outside such facilities without such a limit, the court said state officials failed to show the 35-foot distance was the least restrictive method of impinging on the speech of ant-abortion demonstrators. The decision left open whether a smaller “no speech” zone would be acceptable to the justices.

Even the Supreme Court itself was not immune this term to a rare dramatic outburst. As First Amendment scholar and author Ron Collins noted in his recent FAN 21 (First Amendment News) blog, in May a spectator stood and spoke loudly during a court session. Asking the justices to reverse their Citizens United decision, he said, “I arise on behalf of the vast majority of the people of the United States who believe that money is not speech, corporations are not people and that our democracy should not be for sale to the highest bidder.” The incident secretly was recorded on video and released on the Web. Ironically, the Supreme Court does not permit any cameras in its courtroom, or videotaping of its proceedings.

The pops, bangs and bright explosions of Independence Day celebrations fade quickly, but not the figurative fireworks over how we apply — and at times balance against each other — our core freedoms of religion and free expression in matters of everyday life.

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Institute’s First Amendment Center. He can be reached at gpolicinski@newseum.org.